Citation Nr: 0026269
Decision Date: 09/29/00 Archive Date: 10/04/00
DOCKET NO. 99-11 784 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the veteran's claim of entitlement to service
connection for bilateral hearing loss.
2. Whether new and material evidence has been submitted to
reopen the veteran's claim of entitlement to service
connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to
September 1945.
This matter comes before the Board of Veterans' Appeals
(Board) of the Department of Veterans Affairs (VA) on appeal
from a March 1999 rating determination by the Buffalo, New
York, Regional Office (RO).
FINDINGS OF FACT
1. Claims to reopen service connection for bilateral hearing
loss and tinnitus were denied by the Board in June 1998 on
the basis that new and material evidence had not been
submitted.
2. Evidence received since the June 1998 Board decision is
not cumulative and is so significant in connection with the
evidence previously assembled that it must be considered in
order to fairly decide the merits of the claim.
4. There is plausible evidence of a nexus between the
veteran's military service and current hearing loss and
tinnitus.
CONCLUSIONS OF LAW
1. The June 1998 Board decision is final. 38 U.S.C.A. §§
7102(a), 7103(a), 7104(a) (West 1991); 38 C.F.R. § 20.1100(a)
(1999).
2. As new and material evidence has been submitted, the
claims for service connection for hearing loss and tinnitus
are reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (1999).
3. The veteran's bilateral sensorineural hearing loss and
tinnitus were incurred in service. 38 U.S.C.A. §§ 1110,
1112, 1113, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304,
3.307, 3.309, 3.385 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In June 1998 the Board denied the veteran's application to
reopen claims of entitlement to service connection for
hearing loss and tinnitus. The evidence available at time of
the June 1998 Board decision shows that when the veteran
underwent his separation examination in September 1945, he
reported a history of a perforated ear drum on the right due
to a mine explosion in Germany in February 1945. However, no
abnormalities of the ears were noted on clinical evaluation
and the examiner indicated that the veteran's hearing acuity
was 15/15 bilaterally. Lay statements from two fellow
servicemen, both dated in August 1981, indicate that the
veteran had been injured in Germany during service and
service department records reflect that he had been a gun
crewman during service and had received the Purple Heart
Medal. The record also contains statements from the veteran
to the effect that he suffered from defective hearing and
tinnitus due to service.
Of record is a letter from private physician, D. L. Poushter,
M.D., dated in July 1982 and a November 1981 audiometric
examination report. The letter from Dr. Poushter indicate
that the veteran was evaluated in July 1982 with a history of
hearing difficulties since the time of a mine explosion in
service. The letter shows that the veteran has had
increasing difficulty with his hearing over the last few
years, that his ear drums were very scarred and retracted,
especially on the right, and that simple audiometric studies
revealed that he had a bilateral sensorineural hearing loss.
Dr. Poushter concluded that at that time it was impossible to
relate the hearing loss to the accident described in the
1940s.
Also of record are additional lay statements from four fellow
servicemen which collectively indicate that the veteran was a
member of an artillery crew during service, that his ears
were injured in Germany in February 1945 and that his ear
drum(s) burst and bled at the time of the injury. Records
from private physician M. Parker, M.D. shows that the veteran
reported decreased hearing as a result of a mine explosion
during World War II. The letter also shows that physical
examination in 1996 revealed that the veteran's tympanic
membranes were scarred and thickened, bilaterally and that
audiometric testing revealed a severe sensorineural hearing
loss.
The June 1998 Board decision is final. See 38 U.S.C.A. §
7103(a) (West 1991). A final decision cannot be reopened and
reconsidered by the VA unless new and material evidence is
presented in connection with a request that the previously
denied claim be reopened. 38 U.S.C.A. § 5108 (West 1991);
Suttman v. Brown, 5 Vet.App. 127, 135 (1993).
When it is determined that new and material evidence has been
submitted, the VA must reopen a previously denied claim. 38
U.S.C.A. § 7104(b) (West 1991). The Court has held that in
order to reopen a previously and finally disallowed claim,
there must be new and material evidence presented or secured
since the time that the claim was finally disallowed on any
basis, not only since the time that the claim was last
disallowed on the merits. Evans v. Brown, 9 Vet.App. 273
(1996).
For evidence to be deemed "new," it must not be cumulative
or redundant of evidence already on file; to be "material,"
it must be relevant to, and probative of, the issue at hand.
38 C.F.R. § 3.156; Hodge v.West, 155 F.3d 1356 (Fed. Cir.
1998) (eliminating the Court-imposed requirement that the
evidence in question, when considered along with all of the
evidence of record, both new and old, be of sufficient
probative value to change the outcome of the case). Section
3.156 only requires that the evidence in question, by itself,
or when considered in conjunction with the evidence already
of record, be of sufficient significance that it must be
considered in order to fairly decide the merits of the claim.
Thus, this is the standard that must be employed by the
Board. See 38 U.S.C.A. § 7104(c). Moreover, when
determining whether the claim should be reopened, the
credibility of the newly submitted evidence is to be
presumed. Justus v. Principi, 3 Vet.App. 510 (1992).
The evidence associated with the claims file since the June
1998 Board decision includes a report of an August 1998 VA
audiometric examination which contains diagnoses of
sensorineural hearing loss and tinnitus as well as a medical
opinion suggesting that the veteran's current hearing loss is
related to his battlefield injury during service. In a
November 1998 opinion private physician T.J. LaClair, M.D.
indicated that the veteran had been under his care for
several years and had suffered an injury to both ears during
World War II in his position as head gunner on an M6 tank.
At that time the veteran was on duty in the Rhine River
region of Germany when a tank rolled over a mine which
exploded. Thereafter the veteran had hearing loss and blood
draining from both ear canals. Dr. LaClair stated that he
suspected that the veteran perforated both tympanic membranes
but continued on his tank duty and was not removed from
action. Dr. LaClair concluded that it was reasonable that
the veteran current hearing loss was related to his
battlefield injury during WWII.
The evidence submitted or associated with the record since
the June 1998 Board decision, in particular Dr. LaClair's
August 1998 statement, is new, in the sense that it was not
of record when the Board denied the claim. Also, in view of
the less stringent standard for materiality set forth in
Hodge, it is also material because it addresses one of the
fundamental requirements for service connection - namely,
evidence of nexus (see Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992)), which was one of the reasons the Board denied
the claim. While the statement may or may not prove
determinative in adjudicating the underlying claim, it is
pertinent to and probative of the fact that the veteran's
post-service hearing loss has been linked to military service
by medical opinion. The potential significance of Dr.
LaClair's letter is even greater when considered together
with the evidence of record and the veteran's contentions.
Thus, since this letter provides competent medical evidence
of current disabilities and of a possible correlation to his
service in the military, which was not established when the
Board denied his claim in June 1998, it new and material to
his case.
In view of the foregoing, the evidence cited above permits
the claim to be reopened. However, in Elkins v. West, 12
Vet. App. 209 (1999), the Court held that once a claim for
service connection has been reopened upon the presentation of
new and material evidence, the VA must determine whether,
based upon all of the evidence of record, the claim is well
grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Only
after a determination that the claim is well grounded may the
VA proceed to evaluate the merits of the claim, provided that
the VA's duty to assist the veteran with the development of
facts pertinent to his claim under 38 U.S.C.A. § 5107(a)
(West 1991) has been fulfilled. See Winters v. West, 12 Vet.
App 203 (1999); see also Caffrey v. Brown, 6 Vet. App. 377,
381 (1994).
The preliminary determination that must be made upon
reopening a claim is whether it is "well grounded," meaning
at least "plausible . . . or capable of substantiation."
See Elkins v. West; 12 Vet. App. 209 (1999) (en banc) and
Winters v. West, 12 Vet. App. 203 (1999) (en banc), citing 38
U.S.C.A. § 5107(a). In this case, the evidence alluded to
above as cause for reopening the claim also is sufficient to
well ground it. See Epps v. Gober, 126 F.3d 1464, 1468
(1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303(a) (1999). Organic diseases of the nervous system-
including sensorineural hearing loss-will be presumed to have
been incurred in service if manifested to a compensable
degree within one year after service. This presumption is
rebuttable by probative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309
(1999).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999).
Concerning the merits of the claim, the veteran's service
medical records establish injury inservice. The history
given by the veteran is that he experienced a decrease in
hearing after a mine explosion during service. However, no
abnormalities of the ears were noted on clinical evaluation
and the examiner indicated that the veteran's hearing acuity
was 15/15 bilaterally. There also was no medical evidence
suggesting that a sensorineural hearing loss was diagnosed
within the one-year presumptive period after service.
However, the absence of clinical evidence of hearing loss or
tinnitus during service, or during the years immediately
subsequent to service, is not fatal to the claim if there is
medical evidence indicating the veteran currently has a
hearing loss disability (for VA purposes) and tinnitus, and
there is a medically sound basis for attributing these
conditions to his service in the military. See Hensley v.
Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992).
The veteran alleged in statements submitted during the course
of his appeal that he sustained acoustic trauma to his ears
coincident with his combat service during World War II. He
claimed that a mine exploded close by him causing the onset
of his hearing loss and tinnitus, and that he has continued
to suffer from these conditions during the years since his
discharge from the military. His service personnel records
confirm that he received the Purple Heart and that his MOS
was "gun crewman." Therefore, since his allegations of
acoustic trauma in service, and resulting hearing loss and
tinnitus, are "consistent with the circumstances,
conditions, or hardships of such service," it must be
presumed that he sustained these injuries in the manner
alleged, even though there is no official record of such
incurrence. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R.
§ 3.304(d) (1999); see also Collette v. Brown, 82 F.3d 389,
392-3 (Fed. Cir. 1996).
Furthermore, since, as mentioned earlier, the August 1998 VA
audiometric examination report contains diagnoses of both a
sensorineural hearing loss and tinnitus, and Dr. LaClair
provided a competent medical opinion linking these conditions
to the veteran's military service-specifically, to the
"battlefield injuries during World War II" there is a
plausible basis for granting service connection for these
conditions, particularly since there is no countervailing
medical evidence to the contrary. See Libertine v. Brown, 9
Vet. App. 521, 524 (1996); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993).
ORDER
The petition to reopen the claim for service connection for
bilateral sensorineural hearing loss and tinnitus is granted,
as is the claim for these benefits.
G. H. Shufelt
Member, Board of Veterans' Appeals
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